Onwards and Upwards: Space Tourism's Climate Costs and Solutions

18th November 2011By: Jon Krois

Space tourism is an industry of
today, not just tomorrow. This industry
is set to take off in the coming years and decades as dozens of companies and
thousands of people race to experience space for themselves. The world continues to step into space even
as the rise of a commercial space industry threatens our own planet's
climate. In a study released in October
2010, climate scientists concluded that as few as 1,000 rocket launches per
year would cause worldwide climate change.[1]
This revelation presents both a problem and an opportunity. The threat is significant, and Part I of this
Field Report will explain the new research and its implications. Part II will survey the current legal terrain
applicable to the environmental impacts of space tourism, including space law,
the National Environmental Policy Act (NEPA) and the Clean Air Act (CAA). It concludes that while NEPA and the CAA
partially address the licensing of commercial spaceflights by the Federal
Aviation Administration (FAA), neither space law nor current environmental law
respond sufficiently to the environmental threat posed by this industry. This leaves the United States with the opportunity
to problem-solve at an industry's birth, before damage is done. Part III will attempt a modest start at that
opportunity by proposing potential solutions.

I. The Problem: Black Carbon and Ozone Depletion

A large increase in the number of
rocket launches per year would greatly alter temperatures at both the tropics
and at the poles, causing significant sea ice loss. This is the conclusion drawn by a paper published
in Geophysical Research Letters,the first study of the effects of mass
rocket usage on global temperatures.[2]
The atmosphere is sensitive to rocket emissions generally, and is
particularly sensitive to black carbon emitted by the industry's hybrid
rockets, as black carbon can remain trapped in the stratosphere for years.[3] The
researchers predict that 1,000 rocket launches per year would reduce ozone by
1.7% in tropical areas while increasing it five to seven percent in the polar
regions. This would lower tropical
temperatures by 0.4 °C and raise polar temperatures by as much as 1 °C,
reducing polar sea ice by five to fifteen percent in thirty years.[4]
A suborbital rocket fleet launched 1,000 times per year would influence
global climate about as much as the entire world's fleet of subsonic aircraft,
leading the researchers to conclude that "rocket emissions on this scale
clearly cross a threshold to be considered a human-influenced climate impact of
global importance."[5]

The "thousand rockets problem" is
not a fanciful estimate. Ross, et al.,
drew the number from their examination of detailed plans for space tourism and
science flights using suborbital hybrid rockets.[6]
Indeed, evidence from the industry supports the probability of a coming
explosion in space tourism and commercial space activity generally. As early as 1998, Space Adventures, Ltd., was
booking spaceflights for private citizens; today it is doing the same with
potential private expeditions to the moon.
The world's first space tourist, Dennis Tito, joined a Russian Soyuz
craft in 2001; by 2004, SpaceShipOne-the world's first privately funded and
operated space launch vehicle-flew successfully. Today, the European Aeronautic and Defense
Company is designing an orbiting hotel, while Virgin Galactic has signed up
over 300 people for SpaceShipTwo to begin flights in 2013.[7]
The industry estimates that 13,000 people will have been space tourists
by 2021, generating nearly $700 million in revenue.[8]

These years mark the birth of space
tourism, and the industry will only continue to grow. It is possible that 1,000 rocket launches per
year is a conservative estimate; XCOR Aerospace plans to offer four flights a
day.[9]
If it is successful, one company alone will launch 1,460 annual rocket
flights. The climate warning of Ross, et
al., may be conservative.

II. The Field: Current Law and its Insufficiency

Neither space law nor current
environmental law is sufficient to address the environmental problems presented
by this growing industry. Current space
law is a patchwork of international treaties,[10] federal law,[11] and state laws.[12]
Very broadly, the international agreements demonstrate that even during
the Cold War, the focus of space law has been on assigning responsibility and
mitigating harm. The Outer Space Treaty,
for example, makes each state party internationally liable for damages caused
by objects launched.[13]
However, none of these regimes directly address environmental issues
posed by space activity. "Traditional"
space law is basically silent on climate change.

Federal environmental law, on the
other hand, is not entirely silent on commercial spaceflight and space
tourism. The Department of Transportation's
Office of Commercial Space Transportation (AST)[14] is responsible for regulating
private sector launches and licensing private spacecraft.[15]
It is responsible for complying with NEPA per FAA internal regulations,
which consider AST's exercise of authority a "major Federal action subject to
NEPA requirements."[16]
According to AST, NEPA encourages it to "integrate environmental values
into its decision-making process." It
"considers the environmental impacts of proposed actions and reasonable
alternatives . . . [taking] actions that protect, restore, and
enhance the environment."[17]
In practice, this means that AST prepares Environmental Assessments
(EAs) and Environmental Impact Statements (EISs).[18]

The EISs prepared by AST do consider
air pollution and climate change concerns, but those concerns appear to have
had little effect on AST's licensing decisions.
For example, in 2005, AST prepared an EIS for the licensing of
horizontal launch vehicles and reentry vehicles, as well as necessary support
facilities.[19]
In the EIS, AST was obligated, among other things, to consider the
effect of these vehicles on air pollution and global warming. The EIS admitted that the Environmental Protection
Agency's (EPA) air quality standards for PM, CO, CO2, SO2,
and Pb could theoretically require conformity analysis for vehicles launching
or reentering over a nonattainment area.
However, even assuming that all the proposed launches and reentries were
in the same region, the EIS concluded that the emissions would still be "far
below" the de minimis levels specified and therefore exempt.[20]
The EIS also admitted that these vehicles emit greenhouse
gases-including CO, CO2, NOX, and H2O-but
concluded that this was of little concern because in comparison to emissions by
all American sources, these emissions would have "a negligible impact on global
warming."[21]
Finally, the report addressed ozone depletion from launch emissions,
which it claimed was "a temporary and limited phenomenon."[22]

Another AST EIS released in 2009
demonstrated the same pattern. AST filed
an EIS for the issuance of experimental permits for the launch of reusable
suborbital rockets.[23]
In it, AST was again obligated to examine air quality, climate change,
and ozone depletion. The EIS found that
the activity would "likely have a cumulative impact on climate change."[24]
Alhough the EIS noted that these vehicles would emit "ozone-depleting
substances and greenhouse gasses," it stated that these emissions would be negligible
compared to emissions worldwide.[25]
AST concluded that these issues were, in the parlance of EISs,
"Unavoidable Adverse Impact[s]."[26]
The underlying project was approved as the environmentally preferred
alternative.[27]

In both cases, NEPA functioned as
designed-the agency examined the evidence and considered the environmental
risks posed. However, NEPA did little to
motivate AST to actively address the threat to the world's climate posed by
private space tourism. AST has asserted,
correctly, that the launches it is considering licensing are a minute fraction
of the nation's and world's climate problems. This approach squanders the opportunity to
comprehensively address a likely problem, at least until that problem is
comparable in scope to other climate problems.
At this stage, AST has classified many climate change issues as "Unavoidable
Adverse Impact[s]," and its suggestions for mitigating the potential damage are
lackluster.[28]
As an information-forcing regime NEPA requirements have their uses, but
as a potential solution to the environmental threat posed by space tourism,
they have not encouraged sufficient proactivity.

The CAA's method for accounting for
dangerous gases similarly makes the law unsuitable to tackle the threat of
worldwide climate change caused by space tourism. According to AST's interpretation, EPA's air
quality guidelines only apply to space tourism launches and reentries in
nonattainment regions, and there is no reason to assume the activity in those
areas would meet the de minimis levels EPA specifies before it regulates.[29]
As with NEPA, proactivity is a concern.
However, the air quality guidelines are also insufficient to curb
threatened worldwide climate change from space tourism because climate change
is not a regional issue but a global one.
The areas that need protection, according to Ross, et al., are the
stratosphere, the tropics, and the polar regions.[30]
The CAA's goal of reducing emissions in domestic nonattainment areas is
simply too narrow.

Neither are the mobile source
protections in the CAA currently sufficient to tackle the threat
presented. Title II, Part B of the Act
provides for the regulation of aircraft emissions standards.[31] Congress defined "aircraft" as "any contrivance invented, used, or designed to navigate,
or fly in, the air," and the EPA Administrator is empowered to regulate
emissions of aircraft, which it does.[32] However, this section of the CAA has not been
interpreted to permit the regulation of rocket emissions, and the Administrator
does not do so.[33]

Current space and environmental law
only tangentially relate to the problem of climate change caused by space
tourism. What environmental laws are
applicable, including NEPA and EPA's air quality guidelines, are neither
proactive enough to get out in front of this new threat, nor broad enough in
scope to handle the threat if and when it arrives. New solutions are needed to handle space
tourism and commercial space flight.

III. The Future: Potential Solutions

One solution would be to draft a new
international treaty on space exploitation in the post-Cold War world that
includes provisions for addressing climate change from private space-bound
craft. International space law remains
"anchored down by Cold War philosophies."[34]
It makes states responsible for all space-bound activity within their
borders and provides for relief of injuries caused by others in space
exploration,[35] but it lacks a comprehensive plan
to commercially exploit space or to address the externalities involved in
exploitation. Given the growing
potential-if not national necessity[36]-of private spaceflight, a new international
space treaty could be in order. Such a
treaty could promote the development of cleaner, more environmentally-friendly
private spacecraft, could set up an international cap-and-trade permitting
program for private space launches, or could even establish a body to recommend
emissions standards for private launch vehicles. However, this would not be an easy path as
the international community often has difficulty reaching consensus on
environmental regulation.

Many of these solutions could also
be enacted through federal law by creating a comprehensive regulatory scheme
for commercial space launch emissions regulation. In fact, Article VI of the Outer Space Treaty
may potentially obligate the federal government to step in.[37]
Considering that significant elements of United States space law are already
the de facto standard for other nations,[38] these actions could still have the
desired worldwide effect. A desirable national
solution should also include close consultation with the private spaceflight
entities themselves. However, unlike an
international solution, a national regime presents the danger of impeding or
snuffing out the nascent industry by making it unable to compete with private
spaceflight companies from other nations.
Although potentially easier to enact than a new international regime, a
national solution that has the potential to damage American competitiveness in
this new field is a weakness.

A third solution would be to unify
air and space law into one, overarching, aerospace law, and place space tourism
under the jurisdiction of EPA and the International Civil Aviation Organization
(ICAO). ICAO has long been an
international forum capable of providing technical management, and has the
potential to create traffic safety, security, and environmental rules for
launch vehicles.[39]
Similarly, EPA already monitors and regulates aircraft emissions.[40]
Air law and space law share common values: the recognized desire to develop these arenas
for the benefit of all humanity, as well as a belief in state equality and sovereignty.[41]
Adding space tourism to ICAO's aegis would most likely help. ICAO is already engaged in studying and
promoting ways to reduce aircraft emissions.[42]
In fighting climate change, ICAO has agreed to a global two percent
annual improvement in fuel efficiency until 2050, and to work towards
carbon-neutral growth.[43]
This technical focus and long-term vision could help address and
mitigate climate change caused by space tourism in a proactive, effective way.

Finally, there are long-term
potential technological solutions to rocket emissions, which should not be
dismissed out-of-hand. Although still
science-fiction today, space elevators[44] and mass drivers[45] have the potential to minimize or
even eliminate rocket emissions while maintaining the ability to deliver things
into orbit. Any proper solution to the
threat of climate change from space launches should promote the development of
technology that can ease the need for rocket launches generally.

IV. Conclusion

Space
tourism is coming in force, and bringing with it the specter of hastening
climate change. The most recent research
suggests that even a conservative estimate of the number of rocket launches
possible in the coming years and decades will drastically affect the earth's
climate. Current space law is silent on
climate change, and current United
States environmental law centered on the FAA
AST's licensing of private launch vehicles is insufficient to address the
problem in a serious, proactive way.
However, there are solutions, including new federal law, a new space
treaty, or folding space tourism into the jurisdiction of ICAO. Although the United
States should promote the nascent industry, an awareness
of the ecological danger the industry poses presents the United States
with the opportunity to find the right balance between our planet and our
space-bound future. The United States
should seize that opportunity.

[23].FAA, Final Programmatic Environmental Impact Statement
for Streamlining the Processing of Experimental Permit Applications
ES-1 (2009), available at http://www.faa.gov/about/office_org/headquarters_offices/ast/media/20090803_eppeis.pdf.

[24].Id. at ES-7.

[25].Id. at ES-6.

[26].Id. at 6-1.

[27].See FAA, Record of Decision for Streamlining
the Processing of Experimental Permit Applications 5 (2009), available at http://www.faa.gov/about/office_org/headquarters_offices/ast/media/20091015%20eppeisrod%20signed.pdf.

[36].NASA,
Summary Report of the Review of U.S. Human Space Flight Plans Committee 7 (2009), available at http://www.nasa.gov/pdf/384767main_SUMMARY%20REPORT%20-%20FINAL.pdf
(recommending NASA learn to "rely" on private launch vehicles, especially
during the 7-year gap between the cancellation of the Shuttle program and the
Constellation program's completion).